Foster v. Baer

By the court: Slidell, J. Upon the question of the right of Marlin, Owen <j. Co. to file an answer, we are unable to distinguish this case from Moran v. Tanner, 6 Ann. 119. If the pork was unsound at the date of the sale by Martin, Owen Sf Co. to Baer & Co., the standard of responsibility of the former to the latter is the difference of value, at the date of the sale, between a sound and the unsound article. If, for example, the difference of value on the day of sale was 20 per cent, Baer S¡- Co. would be entitled to a deduction of twenty per cent from the price they paid, assuming the price was the fair market -value, at the time, of a sound article. In saying this is the standard, we assume that Martin, Owen <$• Co. sold in good faith. Bad faith might involve a larger responsibility; but this is not imputed, and its consequences need not be considered. The date of the sale being the time to which we are to look, we are unable to ascertain the damages in the present case, as between Baer Sf Co. and Martin, Owen 8f Co. within the market rates at the date, nor the price paid being proved. It is therefore decreed, that the judgment of the district court against Martin, Owen Sf Co., be reversed, and that tiis cause be remanded for further proceedings, the appellees to pay the costs of the appeal.